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Storm & Associates v. Cuculich

August 28, 1998

STORM & ASSOCIATES, LTD., PLAINTIFF-APPELLANT,
v.
DONALD CUCULICH, NANCY CUCULICH, MARSHALL PATNER AND MARSHALL PATNER & ASSOCIATES, P.C., AN ILLINOIS PROFESSIONAL CORPORATION, DEFENDANTS-APPELLEES.



The opinion of the court was delivered by: Presiding Justice Hoffman delivered the opinion of the court

APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY

HONORABLE GEORGE TIMBERLAKE, JUDGE PRESIDING.

The plaintiff, Storm & Associates, Ltd. (Storm), appeals from an order of the circuit court dismissing its four count amended complaint. For the reasons which follow, we affirm the dismissal of count II, reverse the dismissal of counts I, III and IV, and remand this cause to the circuit court with directions and for further proceedings consistent with this opinion.

From the allegations contained in Storm's amended complaint (complaint), it appears that the defendants, Donald and Nancy Cuculich, were the named plaintiffs in a class action suit pending in the circuit court of Cook County (hereinafter referred to as the "Class Action"), and were being represented in that action by Marshall Patner (Patner) and Marshall Patner & Associates, P.C. (collectively referred to as "the Patner Defendants"). While the Class Action was pending and after the class had been certified, Patner retained Storm to act as co-counsel. Storm accepted the engagement on a contingent fee basis which was memorialized in a letter. Thereafter, Storm filed its appearance as additional counsel for the Cuculichs.

Storm alleges that it performed legal services on behalf of the Cuculichs at Patner's direction prior to its engagement as co-counsel being terminated "without cause." After the defendants refused to compensate Storm for the legal services it rendered as co-counsel in the Class Action, Storm instituted the instant action.

Count I of Storm's complaint is a quantum meruit claim against the Cuculichs for the value of the legal services it rendered and expenses it incurred as co-counsel in the Class Action. This count is premised upon the allegation that Patner acted as the Cuculichs' agent in both retaining and terminating Storm. Count II of the complaint asserts a claim against the Patner Defendants for breach of an agreement in which they allegedly guaranteed payment of Storm's fees. In support of this count, Storm attached to the complaint a copy of a handwritten note which is signed by Patner and which provides in relevant part:

"As I said in my phone message, I will protect your hours. But you did not include them with your letter; will you please do so, at your convenience."

Count III purports to state a claim for tortious interference with contract against the Patner Defendants, alleging that they "intentionally and with malice caused or induced" the Cuculichs to terminate Storm "without cause or justification." In count IV of its complaint, pled in the alternative to counts I, II and III, Storm asserts a quantum meruit claim against the Patner Defendants for the value of the legal services it rendered and the expenses it incurred as co-counsel in the Class Action.

The defendants responded to Storm's complaint with a combined motion to dismiss pursuant to section 2-619.1 of the Code of Civil Procedure (Code) (735 ILCS 5/2-619.1 (West 1996)). As to counts I and IV, the defendants argued that:

1) the services Storm rendered did not confer any benefit upon the defendants individually, and 2) Storm was not yet entitled to recover any attorney's fees because the Class Action was still pending and no fund had been created from which those fees could be paid. As to count II, the Patner Defendants claimed that:

1) the action was barred by the provisions of section 1 of the Frauds Act (740 ILCS 80/1 (West 1996)), and 2) the writing upon which Storm relied was not a guaranty as it contained no promise to pay any debt or obligation owed by the Cuculichs. In support of the dismissal of count III, the defendants argued that "[a]n agent is not liable for wrongfully interfering with its principal's contract since the acts of the agent are imputed to the principal."

In its memorandum in opposition to the defendants' motion to dismiss, Storm addressed the merits of the motion as it related to counts I, II and IV of the complaint. Storm argued that dismissal of count III was premature prior to discovery and objected to the defendants' failure to specify whether they sought dismissal of counts I, II and IV under section 2-615 (735 ILCS 5/2-615 (West 1996)) or section 2-619 (735 ILCS 5/2-619 (West 1996)) of the Code.

The trial court entered a "Final Judgment Order," granting the defendants' motion to dismiss. Thereafter, Storm filed a timely notice of appeal, invoking our jurisdiction under Supreme Court Rule 301 (155 Ill. 2d R. 301).

Section 2-619.1 of the Code is a procedural statute which allows a litigant to combine a section 2-615 motion to dismiss and a section 2-619 motion for involuntary dismissal in one pleading. 735 ILCS 5/2-619.1 (West 1996). However, this statute is not a legislative authorization for hybrid motion practice. Section 2-619.1 specifically provides that a combined motion shall be divided into parts and each part shall be limited to and specify a single section of the Code under which relief is sought. 735 ILCS 5/2-619.1 (West 1996). Meticulous practice dictates that the movants clearly ...


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